Duffy, Senior Circuit Judge, and Kiley and Pell, Circuit Judges.*fn*
This appeal is from a judgment of the district court denying plaintiff Collin's motion for a preliminary injunction and dismissing his action.
The case below arose out of Collin's unsuccessful efforts to secure a permit for holding a rally in Marquette Park, Chicago. Specifically, the complaint sought to compel the defendant Chicago Park District to issue such a permit for Sunday, April 25, 1971, as well as seeking declaratory and injunctive relief.
Collin, leader of the National Socialist Party of America, also known as the Nazi Party, filed his action pursuant to 28 U.S.C. §§ 1331, 1343 and 2201 and 42 U.S.C. § 1983. Designated as defendants were the Chicago Park District and various functionaries thereof, herein collectively referred to as "Park District."
The complaint and evidence taken at hearings below fairly establish the following general background.
In May of 1970, Collin filed an application for a permit to hold a demonstration in Marquette Park for purposes of speech making on June 28, 1970. The estimated attendance was indicated as going as high as 500 persons. Under date of May 22, 1970, a letter from the Park District recreation director denied permission without stating any reasons. In late July 1970, Collin again applied for permission to hold a demonstration for the purpose of making speeches at Marquette on September 6, 1970. No response was received from the Park District until Collin made contact with officials thereof on August 25, 1970, and was informed that his application had been denied. He then learned, independently, of his right to administrative review and appealed his denial. After a hearing, the denial was upheld in a letter dated September 1, 1970.
The letter of denial referred to the fact that the area sought to be used was normally used on Sundays in warm weather as a family picnic area and was in the vicinity of recreational facilities. The letter then referred to the fact that a public assembly held by Collin in Gage Park September 27, 1969, "led to a public commotion which required police presence and action, and which was, or could have led to, a riot or breach of the peace."
The letter then adverted to the fact that Collin had stated that he would produce for review by the Park District all of the pamphlets, literature and posters he intended to use at his proposed public meeting but he had refused to do so at the review. The writer of the letter stated his conclusion in the light of this refusal and in the light of literature previously distributed by Collin on Park District property that Collin intended to violate the Criminal Code of the State of Illinois.
The letter was then completed as follows:
"Such conclusion is particularly disturbing in light of the fact that this abrasive and excoriating material is to be disseminated in an area normally used by families and others for picnics and recreational purposes, and has previously resulted in a public commotion which required police action and protection.
"4. In connection with the denial of the pending application, may I again point out the four free forum areas where applicant may conduct a public meeting and assembly on Park District property without a permit, as defined in Section 17-8.2 of the Park District ordinances."
On January 15, 1971, Collin again applied for permission to hold a rally to speak at Marquette Park, this time on April 25, 1971. He heard nothing from the Park District and the suit followed which eventually resulted in this appeal.
On May 17, 1971, Collin filed in this court an Emergency Application for Temporary Injunction Pending Appeal seeking an order compelling the issuance of the permit to speak in Marquette Park. The application was denied by a two to one vote by this court which held that it "is inappropriate for this court to endeavor to resolve as a matter of first impression on an emergency basis complex factual questions going to the form of relief, if any, which might be appropriate here."
The matter now before us assumes, as we see it, the proportions of a classic First Amendment case in which there has been a denial by a governmental body of the freedoms of speech and assembly because the views which that body assumed would be expressed were unacceptably, if not indeed loathsomely, alien to the prevailing thought. Such a resultant prior restraint appears to us to be an unconstitutional interdiction. We therefore must reverse even though from a personal point of view we share the community repugnance toward the views which Collin could be expected to utter and publicize if he adheres to the beliefs presumably expressive of his opinions at an earlier time.
The record in this case contains several leaflets setting forth aims and accomplishments of the National Socialist White People's Party in 1969. Collin was active in this organization, apparently a predecessor of his 1970 National Socialist Party of America.
The animus of the 1969 literature seemed to have been directed principally at black people and communists. The horizon apparently was considerably broadened the following year as reflected by an exhibit in the record entitled "Thirty Point Program for the National Socialist Party," which Collin testified was the 1970 program of the party. Reminiscent of a page from the history of the Third Reich, the list of the organization's anathematic subjects included communists, the federal income tax, "cheap quality products" (whatever they may be), Negroes, the Federal Reserve System, Jews, the United Nations, incompetent bureaucrats, teachers disloyal to the "Aryan race," pornography peddlers and small families. If this list is not already illustrative of the fact that hatred collects diverse mates, it is noted that one of the program points was the immediate prosecution of all "who have been proven guilty of polluting our natural resources." Although two of the points were "the shooting on sight of all Black and anarchist rioters and looters" and "liquidation of all Communists, pro-Communists, Zionists and other treasonous organizations," point thirty was "installment of the above Program through legal, Constitutional means."
No matter how substantially distasteful most of the program may have been to those dealing with Collin's permit applications, nevertheless the fundamental essentiality of freedom of speech and freedom of assembly as viable tenets is not in dispute in this litigation.
Thus, the Park District while denying the permit stated, "We must under constitutional law, concede [Collin] full and free right to speak and assemble without censorship or prior restraint somewhere on Park District property."
Thus, also, the district court in denying judicial relief stated:
"Freedom of speech is the most cherished of our liberties. It is the symbol and test of a healthy free society. The Constitution is a framework for the protection of minority rights, unpopular or not. The right to free speech and peaceful assembly of a minority group is especially important in this day of increasing Federal reserve towards interference in State action and increasing emphasis on the rights of society over the rights of the individual."
To determine whether this case falls without the broad sweeping ambit of the constitutional guaranty, it is necessary to look at certain additional material facts fairly established by the record.
The site at which Collin sought to hold his rally was in Marquette Park, Chicago. If he were to have a receptive audience, Marquette Park appeared to be his most likely place as it was centrally located in the area in which the bulk of his supporters resided. Marquette Park was and is primarily used for a family picnic area. However, it was not a small, exclusively picnic area. There was no flat ban on demonstrations. Other rallies had been held in the park.
Further, it appears clear in cases other than Collin's that when a requested area in Marquette Park had not been deemed appropriate, suggestions had been made by the Park District which would permit a gathering in another part of the same park.
The district court noted this fact and stated, "If they afford this service to some, it seems reasonable, under the Fourteenth Amendment of the Constitution of the United States they ought to afford this service to all."
Collin's several applications for the permit always specified Area No. 3 of Marquette Park because the particular site formed a natural forum with a hill from which he could speak. In addition, there were nearby sanitary facilities. It seems abundantly clear, however, that Collin would have settled for some other area in Marquette Park.
It also appears clear that the Park District intended to reject any Marquette Park application made by Collin. Rather than suggesting another area in Marquette Park, the superintendent of the Park District pointed out four free forum areas where Collin might conduct a public meeting and assembly on Park District property without a permit as defined in § 17-8.2 of the Park District Ordinance. The four areas were Washington, Garfield, Lincoln and Burnham Parks. Two of the free forum areas are located in parks used almost exclusively by blacks, being Garfield and Washington, and a third, Burnham, although "at one time predominantly Negro, . . . has gone right now to about 50/50 situation." The district court recognized that to require Collin to speak at any of these free forum areas would substantially increase the threat of violence which the Park District itself had used as its reason to deny plaintiff's permit to speak in Marquette Park. The fourth suggested area was Lincoln Park, which was at least nine miles from plaintiff's headquarters and the bulk of his supporters.
Turning next with regard to the factual situation to what appears to be the real underlying basis for the denial of the permit, the possibility of violence if the rally were held, we note the following significant statements in the district court's judgment:
"I have reviewed all of the evidence, including pamphlets and handbills previously distributed by the plaintiff and his organization. Rather than peaceful, the entire thrust of the organization seems to be devoted to the loathsome activity of race-baiting. The prior meetings have been attended by violence almost without fail, and the activities of the organization seem to be dedicated to violent acts of one sort or another. Under such circumstances, it seems wholly unreasonable to have allowed any of plaintiff's applications."
However, upon examination, the principal evidence of violence was contained in the 1969 Annual Report of the Midwest Division of the National Socialist White People's Party, the predecessor organization of plaintiff's party. First of all, this report, while it detailed acts of violence by plaintiff's supporters, referred to the calendar year 1969 well over a year prior to the date on which the plaintiff desired to hold his demonstration. Secondly, an analysis of the incidents reflects that for the most part the violence claimed by the report arose out of attacks on someone else's demonstration. There is no background of violence reflected insofar as the Marquette Park area was concerned.
The pertinent portions of the ordinance upon which the Park District based its denial of this permit read as follows:
"No application for a permit made pursuant to this chapter shall be denied except for one or more of the following reasons: . . . (c) The use of the facility intended by the applicant would present an unreasonable danger to the health or safety of the applicant, of other users or of the public; . . . (e) The use of the facility intended by the applicant is inconsistent with the purpose for which facility has been established or designated. . . ." Park District Code § 17-8.4*fn1
Little purpose will be served by adding another extended dissertative survey to the legal literature pertaining to freedom of speech and freedom of assembly. Indeed, the broad sweep of the First Amendment privilege was well stated by the district court in that part of its opinion hereinbefore quoted. Despite dissenting opinions now and then in particular contexts, the pillar of recognition has remained staunchly resistant to chipping efforts emanating from a distaste for the words spoken or desired to be spoken or because of the purpose or ideology of the group assembling or proposing to assemble.
Turning first to the second prong of the Park District's basis for denial, the statement of the factual situation hereinbefore set out would seem sufficient to dispel the claim that the proposed use was inconsistent with the purpose for which the facility has been designated. In fact it appears that the Park District would not deny Collin or any other person the right to roam through the park in question distributing literature. The thrust of the denial, therefore, was a denial of the right of assembly but this in turn constitutes a denial of effective communication, the essence of free speech. Marquette Park was not just a part of a city block or a tiny neighborhood picnic area but covers some blocks in the south side of Chicago.*fn2 While it apparently was extensively used for family picnics, it is manifest that it was not exclusively so used.
We do not need to reach the question of whether an area of this size dedicated to the public use could be held for picnic use to the exclusion of other uses precluding free speech and free assembly other than picnicking.*fn3
The fact here was that it was not exclusive and, as already noted, other groups were permitted to hold large non-family-picnic rallies. The Park District cannot declare Marquette Park closed to all speakers at assemblies and then let some such speakers continue to use it. Niemotko v. Maryland, 340 U.S. 268, 272-273, 71 S. Ct. 325, 328, 95 L. Ed. 267, 280 (1951), and Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828 (1953).
"The inquiry in every case must be that stated by Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569 [61 S. Ct. 762, 85 L. Ed. 1049] -- whether control of the use of the streets for a parade or procession was, in fact, 'exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.' Id. at 574 [61 ...